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For better and for worse, a large part of proving damages in a personal injury case involves producing medical records and the associated billings to the insurance company or its attorneys. There are several different ways of obtaining medical records to be able to provide it to them. If the records are going to be used as specific evidence at trial, there are certain additional requirements to proving that they are authentic and otherwise admissible.

As to the question of how to get them, the short answer is that there are different avenues, but the appropriate request to the correct provider(s) will get you a copy of your records. The longer answer, below, describes the ways we go about getting the records, in relative detail. If you are interested, read on.

Regardless of the method of requesting the records, keep in mind that your healthcare information is private and protected by federal law—specifically, HIPAA (“Health Insurance Portability and Accountability Act of 1996”). Under HIPAA, patients are in control — for the most part – of their medical information. They say to whom it may be released and whether certain, highly sensitive information—such as certain mental health, addition, HIV/AIDS, and STD/STI information—should be excluded. Healthcare providers and insurers are subject to fines for violations of the law. This is not meant to be a comprehensive look at healthcare privacy laws, it is simply a short primer on the way we seek medical records.

If you have an attorney, your attorney should know how to do this and get the medical records on your behalf. Some common ways of seeking medical records are through (1) a direct request to the medical provider, (2) a third party records retrieval company, or (3) a HITECH request for digital records. There are pros and cons to each, discussed below.

A direct request involves our clients signing a HIPAA-compliant authorization, our office sending it to the billing and records department of the medical providers from whom we are requesting the records, and paying any necessary administrative and copying fees. At times, this is not an efficient use of our office resources because of the follow-up required to obtain the records. Medical providers are busy entities who receive many of these requests.

Those requests are sometimes lost in the administrative shuffle. We do our best to follow up, and as the saying goes, “The squeaky wheel gets the grease.” We pride ourselves on putting our clients first. Still, in an effort to be respectful of our time, staff time, and other considerations, our office is not always the best situated to be that squeaky wheel.

For that reason, we often engage the services of a third party records retrieval company. They are private businesses who, for a fee, will be the “bird-dog” to seeking medical records for our clients. We ask that our clients execute an authorization for the records retrieval company to be recipients of the records, and they will do all the necessary follow-up. The fee is usually not terribly expensive in addition to the regular cost of the records.

Finally, a HITECH request is a request for digital records. It is a letter signed directly by the client, and it directs that the provider, to the extent it is able, send us digital copies for low-cost in accordance with federal law. The advantage to this is that it is low cost, which is always a good thing. Unfortunately, many smaller clinics and providers do not have the capability to comply with this type of request, and others do not have very efficient systems for tracking and filling the requests. Our office has to follow up with these requests more often.

At the end of the day, we try to balance our desire to keep costs down, the needs of the case, and the most valuable uses of our time on behalf of our clients. In a given case, we might use all three approaches to collecting records, or only one. In any event, we know how important medical records and bills can be to proving the damages of the case. As a result, we have developed systems for how best get and track the medical records and billing for our clients.

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About the Author

Ben Melnick joined the firm in 2018. He graduated from Washington State University with a Bachelor's degree in 2010, and went on to earn his Juris Doctorate from Gonzaga University School of Law. In 2016, he was named as the Clark County Bar Association's Rising Star. His practice focuses on personal injury, auto accidents, biking accidents, wrongful death, and insurance disputes. Outside work, Ben likes spend time with his wife outdoors—mostly running, hiking, and skiing—and playing soccer.

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